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Disclosure Reform - Consultation Paper

In recent years, there have been some troubling instances of disclosed materials being misused. Misuse of disclosure information includes use of these materials to facilitate criminal activity, such as harassment and intimidation of witnesses. It also includes situations where sensitive private information about individuals, including victims of crime and third parties, is revealed.

Proposed Legislative Response

Amendments could be made to the Criminal Code to:

set out that all persons who receive disclosure information – including third parties – have a legal responsibility not to use it for improper or collateral purposes;

set out an explicit power on the part of a court to make any order with respect to disclosure materials that it deems fit whether the materials are in the hands of counsel, the accused, or third parties: the order could be made in the interests of justice or to protect the privacy of those affected by the proceedings, but subject to the right of an accused person to make full answer and defence;

create a targeted offence for misuse of disclosure material: the offence could address the use of such materials to help facilitate the commission of a criminal offence, as well as the use of disclosure material with the intention of violating any person's privacy.

Discussion

Disclosure materials can include information of considerable sensitivity, affecting both the interests of the public in fighting crime and the privacy interests of individuals, including victims and third parties. While criminal justice in Canada is a public process, this does not mean that all the underlying documentation is to be freely distributed in public. In particular, disclosure materials are not appropriately distributed in the public domain. As the Martin Report stated, “it is inappropriate for any counsel to give disclosure information to the public. Counsel would not be acting responsibly as an officer of the court if he or she did so.”[4] Further, while it is the accused person's constitutional right to receive disclosure materials in order to make full answer and defence, this does not mean that these materials may be dealt with in an unrestricted manner as between counsel and the accused. The Martin Report makes recommendations on restrictions that should apply to the handling of the materials in this regard, stating, in part, that “defence counsel should maintain custody or control over disclosure materials, so that copies of these materials are not improperly disseminated” (p. 179).

Nevertheless, disclosure materials have been used inappropriately in some cases. Third parties have been found in possession of such materials, possibly with the intention of garnering information that could lead to activities contrary to the interests of justice, such as harassing or threatening witnesses. Disclosure information has also found its way more generally into the public domain, whether in the possession of persons unconnected with the proceedings, posted anonymously in public places, or posted on the Internet. Distribution of materials in this manner may violate the privacy of victims, witnesses, and third parties.

Legislative amendments addressing the use of disclosure materials may help in establishing firmer rules and discouraging misuse. The focus of the amendments suggested here would be on clarifying duties in respect of disclosure materials and the powers of courts to enforce these obligations. It should be noted that undertakings and conditions, sometimes supported by court order, are already sought and received with respect to disclosure materials in some cases. However, this is not done consistently, and difficulties can arise if undertakings are refused by the defence, since some may argue that the refusal cannot interfere with the basic right of an accused person to disclosure. It might be better to address these issues through statutory rules that, without interfering with the obligation to provide disclosure, apply automatic legal obligations of proper use of disclosure materials. The approach could be akin to the implied undertaking rule that applies with respect to discovery information in civil proceedings, under which the obligations are deemed to go along with the transmittal of the information. The statutory provisions proposed here could also be accompanied by provisions addressing the power of courts to enforce these obligations.

While some might see such codification as doing no more than reciting obligations and powers that could be or should be already recognized in law, it may nonetheless help to clarify and extend duties and powers. Analogous codification in the civil context has taken place in some jurisdictions. For instance, Ontario's Rules of Civil Procedure provide: “All parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained” (Rule 30.1.01(3)).

Legislative amendments also could potentially encompass other, more detailed duties with respect to disclosure documents, such as duties with respect to counsel supervision of access by an accused and of proper storage and disposal of disclosure materials. Moreover, amendments could also include a power to seek a court order to vary the usual rules where the interests of justice or a broader public interest are at stake.

As well, the proposal could be accompanied by an offence targeting misuse of disclosure materials.[5] The offence could be defined in terms of the use of such materials to facilitate the commission of a criminal offence. While this definition might appear to duplicate underlying offences that could be charged, it could recognize that use of the disclosure material constitutes a separate wrong – one that would appropriately be subject to a separate, additional offence.

The disclosure offence might also be defined to apply to the use of disclosure material with the intention of violating a person's privacy. This aspect of the offence could recognize that disclosure material can contain sensitive private information, including information about victims and third parties. Even where such information is not misused to commit other offences under the Criminal Code , the violation of privacy itself constitutes a significant wrong, which could be addressed by this provision.

If such provisions on misuse of disclosure were to be enacted, it would be necessary to consider whether they should be subject to specific exemptions and defences. In particular, the offences, and any exemptions and specified defences, would have to be appropriately and carefully drafted to ensure that an accused person's ability to make full answer and defence is protected. Consideration could also be given to protecting good-faith use of the materials in the public interest beyond use by an accused to make full answer and defence.

Questions

Would it be beneficial to enact legislative provisions to address the obligations of those who receive disclosure documents and to address the power of courts to make an order in respect of these materials? If so, how should these obligations be framed?

Should any such amendments include a misuse of disclosure offence and, if so, what would the appropriate scope of such an offence be?

Should any provision be made for the use of disclosure materials beyond what is necessary to make full answer and defence in an individual case, such as use in a broader public interest?

[5] The federal government previously sought to address abuse of disclosure in Bill C-42 (1994), which proposed a new section 604 of the Criminal Code to create the offence of publication of disclosure material. The proposed new section read as follows:

604. (1) Subject to subsections (2) and (3), the accused, counsel for the accused and every person acting on behalf of or under the direction of the accused or counsel for the accused shall not publish any material provided by the prosecutor for the purpose of permitting the accused to make full answer and defence.

(2) A judge of the court before which the accused is to be tried may, where the accused shows reasonable cause, order that material referred to in subsection (1) may be published on the terms and conditions ordered by that judge.

(3) Nothing in this section affects the right to publish information that is otherwise publicly available.

(4) Every person who contravenes this section is guilty of an offence punishable on summary conviction.

This amendment was, however, rejected by the Senate Committee studying the Bill. Among the grounds on which the amendment was questioned in Committee proceedings was that it created an offence that was targeted, in part, at the criminal defence bar. Further, the concept of “publish” was not seen as being clear. It may be suggested, however, that an offence provision, such as that proposed in this consultation paper, could be narrowly and clearly targeted so as to avoid such objections.